7th Circuit holds IWMC policy is likely unconstitutional (2-4-14)
This mainly affects the denizens of Indianapolis’s famed Monument Circle, where the case originated.
Eric Smith held a two person protest (that of he and his young son) of a proposed United Nations Arms Treaty at Monument Circle in Indianapolis, permits for which were controlled by the Indiana War Memorials Commission (“IWMC”). Mr. Smith was told he needed a permit to hold such a protest and was removed from the area. He then requested, inter alia, injunctive relief from Southern District Court of Indiana (J. Lawrence) and was denied same.
The 7th Circuit disagreed. First, the Court held that even though the policy was changed after the denial and before the appeal, the appeal was not moot since the changes were nominal and the issues contained in the original policy were present in the amended one. Second, the Court found that Smith would likely succeed “at trial” on the basis that 1) the policy is not narrowly tailored in that small groups have to seek a permit to protest but groups of up to 25 people can meet for lunch; 2) the policy is not narrowly tailored in that any group that advertises, even if the turnout is minimal (as here), must obtain a permit; 3) the policy is not content neutral because the commission vests”‘ unbridled discretion’ in the person who decides whether a permit will issue” and this “excessive discretion can lead to discriminatory enforcement.”
Judge Hamilton authored the opinion, Posner and Williams concurred.